William Dempsey, Employee v. Arkansas Electric Cooperative, Employer, and Crockett Adjustment

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

WILLIAM DEMPSEY, EMPLOYEE

APPELLANT

V.

ARKANSAS ELECTRIC COOPERATIVE, EMPLOYER, and CROCKETT ADJUSTMENT

APPELLEES

CA04-756

February 23, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F202214]

AFFIRMED

Robert J. Gladwin, Judge

This is an appeal from the Workers' Compensation Commission, which affirmed the decision of the Administrative Law Judge (ALJ) denying appellant William Dempsey's claim for: (1) additional temporary-total disability benefits after June 30, 2002; (2) additional medical expenses; (3) benefits for permanent anatomical impairment. On appeal, appellant argues that the Commission's findings are not supported by substantial evidence. We affirm.

Appellant was employed by appellee Arkansas Electric Cooperative to trim brush and trees around power lines. On February 4, 2002, he incurred a compensable injury when he injured his back while picking up a heavy log and attempting to throw it into the back of a chipper truck. At that time, appellant felt a sharp pain run through his back. He initially received treatment from his primary care physician, Dr. Chrysti Williams, who ordered an MRI that was performed on February 18, 2002. The MRI showed mild lumbosacral spondylosis and possible minimal superimposed central posterior disc protrusion at L5-S1. Dr. Williams recommended medication and referred appellant to a neurosurgeon in response to the MRI findings.

Appellant was examined by neurosurgeon Dr. Steven Cathey on April 15, 2002. Dr. Cathey also reviewed appellant's medical records, including the MRI scan results, and determined that the neurological examination was negative and there were no signs of lumbar radiculopathy. Additionally, he found appellant's MRI to be negative and, although the radiologist had mentioned degenerative disc disease as well as a possible disc protrusion at L5-S1, Dr. Cathey believed the MRI to be unremarkable for a patient who was forty-two years old. Dr. Cathey recommended that appellant consult Dr. Williams regarding physical therapy and stated that he thought appellant could return to regular duty work when appellant thought he could handle the work. Dr. Cathey also stated that he did not believe that appellant had sustained any impairment as a result of the injury.

Dr. Williams examined appellant again on April 17, 2002, at which time she prescribed medication and arranged for physical therapy. She noted that she was going to contact workers' compensation to get approval for a second referral to a neurosurgeon or pain-management physician because she was not sure what else to do for appellant. Dr. Annette Meador examined appellant for chronic pain management on June 10, 2002, at which time there was no indication that appellant had palpable muscle spasms. Dr. Meador noted in her June 28, 2002 report that, after reviewing appellant's previous therapy notes, she found that he was not very motivated and that his symptoms seemed to outweigh his physical exam findings. Dr. Meador performed trigger-point injections and explained that appellant's improvement would be largely dependent on his motivation. She also advised that he try to reduce his reliance on narcotics for treating his symptoms. She instructed appellant on various exercises but found that he was not doing them when she saw him again on June 28, 2002. Dr. Meador released appellant from her care and authorized his return to full-duty work as of July 1, 2002.

On July 10, 2002, appellant was seen by an anesthesiologist specializing in pain management, Dr. Sunder Krishnan. Dr. Krishnan did not review appellant's medical records but, based upon the history given to him by appellant along with his continued complaints of pain and muscle spasms, believed he was suffering from a bulging lumbar disc and lower extremity radicular pain. Appellant was again advised to limit his use of narcotics and received a series of two epidural steroid injections, neither of which improved his condition. Dr. Krishnan subsequently reviewed the initial MRI scan results and thought it indicated minimal disc bulging without nerve root impingement. On August 12, 2002, Dr. Krishnan had appellant undergo an additional MRI with contrast enhancement after he experienced pain following one of the epidural-steroid injections. While the second MRI was performed to rule out any infectious process or worsening of appellant's condition, the results were consistent with the original MRI.

Dr. Krishnan saw appellant again on September 23, 2002, and discussed a provocative diskogram after noting a normal neurologic examination with continuing complaints. Appellant was hesitant to move forward with the procedure and was treated by his primary care physician, Dr. Williams, from September 2002 through January 2003. Dr. Krishnan next saw appellant on January 13, 2003, at which time the results of his neurologic examination remained unchanged. Dr. Krishnan again discussed the diskogram procedure and recommended that appellant decrease his use of narcotics. Dr. Krishnan stated that, at that point, there was no other course of treatment that he could advise. At some point, Dr. Krishnan indicated an eight-percent impairment to the body as a whole based on the AMA Guides to the Evaluation of Permanent Impairment (4th ed. 1993), which was revised and reduced to a six-percent impairment rating during his deposition. Dr. Krishnan is the only physician involved who assigned an impairment rating to appellant.

Before addressing the merits we note that appellant has submitted a brief with an abstract that is insufficient under Ark. Sup. Ct. R. 4-2(a)(5). Although failure to abstract materials essential to the understanding of an argument on appeal has in the past been considered a bar to consideration of the merits of the argument, this court must now allow rebriefing to cure deficiencies in the abstract or Addendum. City of Dover v. City of Russellville, 351 Ark. 557, 95 S.W.3d 808 (2003). Appellant's abstract consists of six pages of testimony from the June 24, 2003 hearing before the ALJ but fails to include the abstracted deposition testimony of Drs. Krishnan and Cathey. That testimony has instead been included in the Addendum in the form of sixty pages of photocopied deposition transcript. The entire record in this matter contains 298 pages, and appellant's abstract, statement of the case, argument, and Addendum approaches a total of 290 pages. While Rule 4-2(a)(8) allows for the inclusion of exhibits such as appellant's 168 pages of medical records, Rule 4-2(a)(5) specifically requires that deposition testimony be abstracted in a fashion similar to in-court testimony. As such, the abstract fails to meet the requirement that it consist of an impartial condensation of those material parts of the pleadings, proceedings, facts, documents, and other materials in the transcript necessary to an understanding of the question presented to the court for decision as required by Ark. Sup. Ct. R. 4-2(a)(5). Rather than ordering rebriefing pursuant to Rule 4-2(b)(3), we instead reach the merits because the appellees have provided a supplemental abstract.

Typically, on appeal to this court, we review only the decision of the Commission, not that of the administrative law judge. Daniels v. Affiliated Foods S. W., 70 Ark. App. 319, 17 S.W.3d 817 (2000). In reviewing a decision of the Commission, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). The question is not whether the evidence would have supported findings contrary to those made by the Commission, but only whether the Commission's decision is supported by substantial evidence. Woodall v. Hunnicutt, 340 Ark. 377, 12 S.W.3d 630 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. There may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Id. We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).

In this particular case the Commission affirmed and adopted the ALJ's opinion as its own. Under Arkansas law, the Commission is permitted to adopt the ALJ's decision. See Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876, (2003) (citing Odom v. TOSCO Corp., 12 Ark. App. 196, 672 S.W.2d 915 (1984)). Moreover, in so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. See Branum, supra. Therefore, for purposes of our review, we consider both the ALJ's order and the Commission's majority order.

(I) Additional Temporary-Total Disability Benefits After June 30, 2002

A claimant is entitled to temporary total disability benefits for that period within which he remains within his healing period and is totally incapacitated from earning wages. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. Smith-Blair, Inc., supra. If the underlying condition causing the disability has become more stable and there is nothing further in the way of treatment that will improve the condition, the healing period has ended. Id. A claimant's continued complaints of pain are not sufficient to extend his healing period. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The question of when the healing period has ended is a factual determination for the Commission that will not be disturbed if there is substantial evidence to support it. K II Constr. Co., supra.

Appellant argues that there is not substantial evidence to support the Commission's finding that his healing period ended on June 30, 2002, and that the credible evidence presented indicates instead that his healing period ended sometime between September 23, 2002 and November 4, 2002. He asserts that he should be awarded additional temporary-total disability benefits for that period. Appellant discounts the opinions of Drs. Cathey and Meador and their releasing him to full-duty work as of the end of June 2002. He points to the additional treatment sought and obtained from Dr. Krishnan via referral from Dr. Williams.1 He claims that Dr. Krishnan provided active medical treatment, in the form of a series of epidural steroid injections, aimed at improving his condition, and that at a minimum he remained temporarily disabled and within his healing period through September 23, 2002. That is the date Dr. Krishnan began recommending a diskogram, and appellant maintains that he and Dr. Krishnan continued contemplating that procedure until November 4, 2002. Dr. Krishnan testified that, if appellant's treatment was being covered by appellees, and if the recommendation for a diskogram was rejected, a functional-capacity examination would have been pursued. Appellant asserts that at that point he would have been found to have reached maximum medical recovery, sometime between September 23, 2002 and November 4, 2002. He further asserts that it was the appellees' refusal to pay for his medical treatment that pushed the date to November 4, 2002, and that he should receive benefits for that entire period.

When medical evidence is conflicting, the resolution of the conflict is a question for the Commission, and when the Commission chooses to accept the testimony of one physician in such cases, the court is powerless to reverse the decision. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). Dr. Cathey reviewed appellant's medical records, including the results from the second MRI scan performed on August 12, 2002, and found that the scans were normal for a forty-two-year-old man and that appellant's examinations were negative except for degenerative changes. Both Drs. Cathey and Meador released appellant to full-duty work as of June 30, 2002, without any impairment.

On the other hand, Dr. Krishnan admittedly did not review appellant's previous medical records during the course of treatment, with the exception of a review of the initial MRI scan results. He based his recommendations and treatment on appellant's complaints of pain and muscle spasm and his subjective findings of tenderness and decreased range of motion, and aside from those, his initial examination was negative. Although appellant bases his claim for benefit on the bulging disc indicated on the MRI scan results, even Dr. Krishnan testified that the bulge was minimal and did not impinge on any nerves. He further acknowledged that the MRI showed that appellant also suffered from arthritis and that appellant reported to him that the epidural-steroid treatments administered failed to provide any relief.

There is substantial evidence to support the Commission's finding that appellant failed to show by a preponderance of the evidence that he is entitled to additional temporary-total disability benefits after June 30, 2002, because he was no longer in his healing period and not totally incapacitated to earn wages at that time; accordingly, we affirm on this point.

(II) Requested Additional Medical Expenses

It is the continuing medical care provided by Dr Krishnan, specifically the series of epidural-steroid injections, that are at issue in this appeal. Arkansas Code Annotated section 11-9-508 states that employers must provide all medical treatment that is reasonably necessary for the treatment of a compensable injury. It is the claimant's burden to prove by a preponderance of the evidence that medical treatment is reasonable and necessary. Geo Specialty Chem., Inc. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). There is no presumption that the claimant's problem is compensable, that he is entitled to benefits, or that treatment is reasonable, related and necessary. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). Furthermore, speculation and conjecture cannot substitute for credible evidence. Smith-Blair, Inc., supra. What constitutes reasonable and necessary treatment under this statute is a question of fact for the Commission. Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996). The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). If the evidence is conflicting, its resolution is a question of fact for the Commission. Jeter v. B. R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Cooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).

Appellant maintains that the Commission's basic reason for denying the requested additional medical benefits was that the treatment was provided for subjective complaints of pain and that appellant did not, in fact, achieve improvement. He asserts that the course of treatment was based, not only upon his subjective complaints, but also upon medically documented "objective findings," specifically, the February 18, 2002 MRI scan results. See Smith v. Country Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). He also states that the fact that his treatment failed to improve his condition does not mean that it was not "reasonably necessary." See Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984). Appellant argues that it was perfectly reasonable for pain management treatment to be provided for his type of condition and that Dr. Krishnan testified that the treatment was provided to help appellant feel better, become more functional, and alleviate some of his disability.

There is substantial evidence to support the finding of the Commission that appellant failed to prove the requested additional medical services were reasonably necessary and related to his compensable injury. Dr. Krishnan admitted in his deposition testimony that much of his treatment was based on appellant's subjective complaints, as he never reviewed appellant's medical records. Although he did note the bulging disc on the original MRI scan results, Dr. Krishnan also noted appellant's pre-existing arthritis and was unable to determine which was the cause of appellant's current problems. Both Drs. Cathey and Krishnan observed that it would be speculative to relate the MRI findings to the February 4, 2002 work-related injury. These observations are supported by the evidence, and we hold that there is a substantial basis for the Commission's conclusion on this issue.

(III) Benefits For Permanent Anatomical Impairment

Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(a). "Major cause" is defined as more than fifty-percent of the cause, see Ark. Code Ann. § 11-9-102(14), and must be established according to the preponderance of the evidence. See Moore v. Mueller Industries, __ Ark. App. __, __ S.W.3d __ (Nov. 10, 2004). Additionally, if any compensable injury combines with a pre-existing disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(b).

A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). See also Excelsior Hotel v. Squires, 83 Ark. App. 26, 115 S.W.3d 823 (2003). When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers' Compensation Commission, nor the courts may consider complaints of pain. Ark. Code Ann. § 11-9-102(16)(A)(ii). Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1)(B).

Appellant maintains that the MRI scan finding, which was confirmed by Dr. Meador, of a bulging disc is a sufficient objective medical finding. He states that Dr. Krishnan's reliance on the AMA Guides for his six-percent body as a whole impairment rating is consistent with well-settled case law as opposed to Dr. Cathey's belief that the bulging disc was not an "objective finding." Additionally, he claims that the Commission's finding that he failed to prove that the major cause of the impairment was the work-related injury as opposed to a pre-existing condition is factual error as evidenced by Dr. Krishnan's signature on the Physician's Statement specifically directing that the compensable injury must be the major cause of the impairment provided. He asserts that Dr. Krishnan's signature, in and of itself, is sufficient proof of the issue.

The medical records clearly show that neither Dr. Cathey nor Dr. Meador attributed any permanent impairment to appellant's work-related injury. Dr. Cathey further testified that he believed appellant would make a good recovery and maintained his belief that appellant could return to his full work duties even after viewing the August 12, 2002 MRI scan results. Furthermore, even Dr. Krishnan testified that he could not determine whether appellant's symptoms were caused by pre-existing arthritis or the bulging disc, assuming that the bulging disc was indeed attributable to the work-related injury. He also testified that he could not objectively measure appellant's pain and that he based his initial impairment rating on the MRI scan results and appellant's complaints of spasms, neither of which could be conclusively linked to the February 4, 2002 work-related injury. There is substantial evidence to support the Commission's finding that appellant failed to meet his burden of proof that he was entitled to benefits for a six-percent impairment rating.

Affirmed.

Pittman, C.J., and Vaught, J., agree.

1 Appellees claim that appellant sought treatment from Dr. Krishnan without a referral, but Dr. Krishnan's deposition testimony reflects that appellant was referred by Dr. Williams.